The PERM (Permanent Labor Certification) process is a critical initial step for obtaining an employment-based green card. This process encompasses several stages, including job advertising, securing a prevailing wage determination from the U.S. Department of Labor (DOL), and conducting a thorough recruitment process to prove there are no qualified U.S. workers available for the job. Filing a labor certification application with the DOL is the most crucial step, as a successful PERM approval is required for employers to submit Form I-140 (Immigrant Petition for Alien Worker), which allows eligible foreign workers to seek lawful permanent residency in the U.S.
A frequent challenge for U.S. employers in the PERM process is identifying the optimal timing for filing the labor certification and commencing the green card application. This blog will explore why precise timing is essential during the PERM process and discuss strategies for employers to effectively initiate this critical step on behalf of their foreign employees. Understanding the timing can help avoid delays and ensure a smoother path to securing a green card.
Optimal Timing for Starting the PERM Process
U.S. employers who are sponsoring employees for green cards need to be well-informed about the factors that influence the PERM process timeline and should proactively plan to ensure a successful outcome. Delaying the initiation of the PERM process can lead to situations where employees' work visas expire, potentially forcing them to leave the U.S. while their immigration status is pending. This not only places undue stress and uncertainty on the employees and their families but also disrupts the company's operations.
Historically, immigration experts have recommended starting the PERM process at least two years before an employee's work visa approaches its expiration limit. But given the current spike in processing delays and other difficulties, it can be helpful to begin the application process even sooner, ideally three to five years before the visa expires. This proactive approach helps companies navigate through the complexities of immigration backlogs and ensures a smoother transition for their employees.
Understanding the Risks of Delaying the PERM Process
U.S. employers often question when the latest possible time to initiate the PERM process is, without jeopardizing an employee’s immigration status. While each situation varies, there are established guidelines to gauge the timing risks associated with the PERM process:
- Low Risk: More than 3 years before the visa's expiration
- Medium Risk: Exactly 2 years prior
- High Risk: Less than 2 years remaining
These guidelines are crucial for employers to consider in order to prevent potential complications with their employees’ ability to stay and work in the U.S. legally.
Important Advice for H-1B Visa Holders
Initiating the PERM application early can benefit companies by taking advantage of a rule that allows H-1B visa holders to extend their stay beyond the standard six-year limit. For eligibility for this extension, either the PERM application or the I-140 petition must have been in process for at least 365 days. Consequently, it's advisable to file the PERM application before the employee's fifth year on an H-1B visa to ensure ample processing time.
Navigating PERM Processing Times
PERM processing times can differ significantly based on the employer and specific application details. The process itself consists of multiple steps, each with its own set of varying durations. Recently, there has been a noticeable increase in PERM processing times, attributed to a higher volume of applications, an accumulating backlog, and intensified scrutiny from the Department of Labor (DOL).
Currently, the average processing duration for a PERM application ranges from 6 to 12 months. Employers seeking a detailed breakdown of expected processing times can consult the DOL website for updates.
In light of the considerable backlog and processing delays, it is crucial for employers to submit their PERM applications early to mitigate any potential delays in their employees’ green card processes.
Preparing for Potential DOL Audits in the PERM Process
A critical aspect of managing the PERM process includes preparing for possible PERM audits by the Department of Labor (DOL). These audits are thorough reviews designed to ensure that U.S. employers comply with the requirements of the PERM program. The DOL meticulously examines all submitted documents and information to verify their accuracy and adherence to the program’s standards.
Audits may be conducted randomly or triggered by specific factors. If an audit is initiated, the DOL will request additional documents and information from the employer, often within a designated time frame. In recent years, the frequency of PERM audits has increased as the DOL has intensified its focus on compliance. This scrutiny can extend the PERM processing time by several months, so employers should factor in the possibility of audits when planning their application timeline.
Reducing Costs with Early PERM Application Filing
Filing a PERM application early not only accelerates the employment-based green card process but can also lead to significant cost savings for employers. During the second stage of the green card process, which involves filing Form I-140, many employers choose Premium Processing to avoid any disruptions in their employee's work authorization or status. However, by initiating the PERM application promptly, employers can mitigate the urgency typically associated with the second stage. This allows for the standard processing of Form I-140, potentially saving employers up to $2805 in Premium Processing fees. Thus, timely filing during the initial stages can be economically beneficial while ensuring smoother progress in the visa application process.